ORDER
1. This contempt petition is filed alleging that the first respondent had wilfully disobeyed the order passed by this Court in M.F.A. No. 2883 of 1997, dated 26-8-1997 directing him not to sell or alienate or in any way encumber the schedule property.
2. The brief facts of the case are that complainant filed a suit O.S. No. 1223 of 1997 on the file of the. City Civil Court, Bangalore for recovery of an amount of Rs. 8.42 lakhs. In the suit he sought for attachment before the judgment of the schedule property, on the ground that the first respondent is trying to sell the schedule property. The first respondent made an averment that he is not intending to sell the schedule property. The Trial Court rejected the application filed for attachment. Against the said order the complainant filed an appeal M.F.A. No. 2883 of 1997 in this Court. This Court after satisfying that there is a prima facie case on merits passed an order dated 26-8-1997 directing the first respondent herein not to sell or alienate or in any way encumber the schedule property. Later, the first respondent filed a memo in the appeal stating therein that he has no capacity either to provide a surety or security at that stage, hence the appeal may be allowed and impugned order may be reversed and further to permit him to provide security at a later stage to raise the attachment before the Trial Court in the interest of justice. In view of the submission made by the first respondent in the memo, the appeal was allowed and the order of the Trial Court was set aside and this Court passed an order that there shall be an order of attachment of the property as prayed for by the complainant. However, the Trial Court shall thereafter consider any application filed by the first respondent for raising the attachment, if he furnishes adequate security to the satisfaction of the Trial Court. The appeal was accordingly allowed on 16-9-1997. Thereafter the first respondent alienated the property under registered sale deed dated 24-11-1997 for a sum of Rs. 24 lakhs in favour of the impleaded respondents.
3. Therefore, the present contempt petition is filed alleging that the first respondent intentionally and wilfully violated the order of this Court and also violated the interim order dated 26-8-1997 passed by this Court directing the first respondent herein not to sell or aliernate or in any way encumber schedule properly. Therefore, he may be punished in accordance with law by directing detention in civil prison and also directing attachment of his property and grant such ether relief as per law.
4. An affidavit is filed by the first respondent denying the allegations regarding the facts of the suit. He stated that this Court passed an interim order on 26-8-1997 to the effect that he should not encumber the property if it is not already encumbered. He stated that on that day he brought to the notice of the Court that he had agreed to sell the property in favour of M/s. G. Shiva, G. Krishna and G. Nataraj, respondents 2 to 4 and the agreement is dated 16-9-1997. He submitted a memo to this Court through his Advocate. It is stated in the memo that the appeal may be allowed and the order of the Trial Court be set aside. The substance of order of this Court is that this Court directed attachment of the property as prayed for by the complainant for the reasons best known to him and also knowing the weakness of this case he did not pursue to get the property attached as required under Order 21, Rule 54 read with Order 38, Rules 6 and 7 of the CPC. Therefore, in the eye of law there is no attachment, so the first respondent has already entered into an agreement to alienate the property and there is no intention on the part of the first respondent to violate the order of this Court. There is no material to indicate that injunction order was served on the first respondent or there is a prohibitory order on his part as required by law after 16-9-1997. Therefore, the first respondent has not committed any contempt. Accordingly the contempt petition may be dismissed.
5. The first respondent did not lead any evidence. Thereafter, on allowing of I.A. filed by the complainant the purchasers are impleaded as respondents 2 to 4. The impleaded respondents filed an objection stating therein that the complaint petition is not maintainable. They denied the facts of the suit. They have further stated that they are not aware of the order of the Trial Court rejecting the attachment and respondent filing an M.F.A. and this Court passing an interim order on 26-8-1997 restraining the first respondent from encumbering the property and finally this Court allowing the appeal vide order dated 16-9-1997. Thus the said respondents stated that they are not aware of passing of the order by this Court pursuant to the memo filed by respondent 1.
6. A rejoinder is filed by the complainant reiterating the facts stated in the contempt petition and further stated that the first respondent deliberately alienated the property and violated the orders passed by the Trial Court and as such has played fraud on the Court as well as on this complainant resulting in deception of both the Court and the complainant. Therefore, it is stated that he has committed the contempt of this Court. It is stated that the first respondent had entered into an agreement with the implepded respondents even before the order is passed by this Court in the Miscellaneous First Appeal.
7. The complainant has stated that the contention of the first respondent in the Miscellaneous First Appeal that he had no knowledge of injunction, order passed by this Court, is untenable. The first respondent had engaged art Advocate and participated in the said appeal. On the memo filed by first respondent the appeal was allowed by this Court. This respondent had intentionally and deliberately played fraud on the Court and the complainant, as he had alienated the schedule property even though injunction order was passed in the Miscellaneous First Appeal and appeal was allowed attaching the schedule property. There-fore, it is contended by the complainant that the first respondent is liable for punishment.
8. The following charge was framed against the first respondent:
“That you have wilfully disobeyed the order passed by this Court in M.F.A. No. 2883 of 1997, dated 26-8-1997 directing you not to sell or alienate or in any way encumber the schedule property which is mortgaged in favour of the complainant under the equitable mortgage and sold the said property under a registered sale deed dated 24-11-1997, for a sum of Rs. 24,00,000/- (Rupees twenty-four lakhs only) as per Annexure-B in favour of (1) Sri G. Shiva, son of Gopal Shettiar, (2) G. Krishna, son of Gopal Shettiar, and (3) G. Nataraj, son of Gopal Shettiar, residents of Bangalore and, thereby committed contempt of Court punishable under Section 12 of the Contempt of Courts Act and within our cognizance”.
The complainant examined himself and deposed as follows:
“I am the complainant in this case. I know the first respondent. Respondent borrowed a sum of Rs. 50,000/- on 15-4-1995 and an additional sum of Rs. 5.50 lakhs on 8-5-1997 from me and execured an agreement agreeing to repay the said amounts along with interest, at 24% per annum, He deposited the title deeds pertaining to his house No. 2770, situate at 17th Cross, 6th Main, Banashankari II Stage, Bangalore. As the first respondent had not repaid the amount I filed a suit in O.S. No. 1223 of 1997 on the file of the City Civil Court, Bangalore. I sought for an interim order of attachment of the property before judgment and the same was rejected. I filed an appeal in M.F.A. No. 2883 of 1997 in this Court. This Court passed an interim order on 26-8-1997 directing the first respondent not to sell or alienate the property in question. I have produced the certified copy of the said order. Respondent knew about the said interim order passed by this Court. Subsequently, the said appeal was allowed. I have produced the certified copy of the order passed in the appeal. During the pendency of the appeal, the first respondent filed a memo, copy of which is marked as Ex. C. 1. Subsequently, respondent sold the schedule property under registered sale deed dated 24-11-1997. I have produced the certified copy of the sale deed which is marked as Ex. C. 2”.
He was cross-examined. In the cross-examination he denied the suggestion that he had not advanced Rs. 50,000/- on 15-4-1995 nor advanced further amount of Rs. 5.50 lakhs on 8-5-1997 and the first respondent has not executed any agreement in his favour agreeing to repay the loan amount. He denied the suggestion that the first respondent had not deposited any title deeds pertaining to the suit schedule property with him. He has admitted that he neither got the suit schedule property attached subsequent to the order of attachment being passed by this Court on 16-9-1997 nor earlier to 24-11-1997.
9. Respondents have not adduced any oral evidence. Thus, in these proceedings the averments made by the complainant in his pleadings supported by his oral evidence remain uncontroverted as none of the respondents had entered into witness-box and placed evidence on record to show that they have not committed contempt of this Court.
10. The learned Counsel for the complainant contended that the first respondent with a deliberate intention alienated the property in favour of the impleaded respondents and violated the orders of this Court and they having knowledge that an order has been passed by this Court in the Miscellaneous First Appeal, they have purchased the property. Therefore, the impleaded respondents are also liable for punishment for having committed contempt of Court. He further contended that as the sale is made in violation of this Court order in the Miscellaneous First Appeal and therefore, it is prayed by the complainant that the transaction of sale of the property in favour of the impleaded respondents has to be declared as null and void.
11. The learned Counsel for the first respondent contended that it is a fact that the interim order passed by this Court in the Miscellaneous First Appeal is not to encumber the property in the appeal and the appeal was allowed on the memo filed by him on 16-9-1997. Though the Miscellaneous First Appeal was allowed by setting aside the order of the Trial Court and the order of attachment of the property is passed, the same is not given effect to by taking steps by resorting to Order 38 read with Order 21, Rule 54 of the CPC. Therefore, it cannot be said that there is an order of attachment of the property being in force. So the alienation of the property made by the first respondent and the purchase made by the impleaded respondents are not in violation of order of this Court in the appeal. Therefore, it is contended by the learned Counsel that they have not committed any contempt and the contempt petition is liable to be dismissed.
12. The important question of law that arises for consideration in this case is, whether the first respondent has committed contempt of Court by violating the order passed by this Court by the appeal, when he had admittedly sold the schedule property after the Miscellaneous First Appeal was allowed and the order of attachment of he schedule property was passed at the instance of first respondent and to is knowledge.
13. The admitted facts of the case are that a suit for recovery of amount of Rs, 8,42,000/- is filed by the complainant in O.S. No. 1223 of 1997. In that an I.A. is filed to pass an attachment before judgment under Order 38, Rule 5 by way of an interim order. Before the Trial Court the defendant who is at present the first respondent filed objection to I.A. and stated that he would not alienate the property in question. The Trial Court based on the statement of objections filed by the first respondent rejected the LA. Against that order the complainant filed M.F.A. No. 2883 of 1997 and this Court passed the following interim order on 26-3-1997:
”In the meanwhile, the first respondent shall not encumber the property, if it is not encumbered already”.
Thereafter, in the appeal the first respondent filed a memo stating therein that the first respondent has no capacity either to provide surety or any other security at this stage and therefore, he had submitted that the appeal filed by the complainant may be allowed and the impugned order of the Trial Court may be reversed and further permit him to provide security at a later stage to raise the attachment before the Trial Court in the interest of equity, justice and law.
14. Relying on the memo filed by first respondent, this Court passed the following order on 16-9-1997 in the Miscellaneous First Appeal referred to above:
“In view of the said submission made by the first respondent this appeal is allowed and the impugned order passed by the Trial Court is set aside. There shall be an order of attachment of the property as prayed for by the appellant/plaintiff before the Trial Court. However, the Trial Court shall thereafter consider any application filed by the first respondent who is the defendant in the said suit for raising of attachment if he furnishes adequate security to the satisfaction of the Trial Court. With the said observation, this appeal is allowed”.
Thereafter the suit property is alienated by the first respondent in favour of impleading respondents vide registered sale deed dated 24-11-1997 for a sum of Rs. 24 lakhs.
15. In the Schedule of the sale deed which is filed and marked as Annexure-D, it is stated as follows:
“All that piece and parcel of the property now known and bearing Municipal No. 2770, situated at 17th Cross, BSK II Stage, Bangalore (Corporation Division No. 52A) measuring East to West 40 feet and North to South 60 feet together with RCC roofed building and other easementary rights connected and attached thereto and bounded on the
East by : Property No. 2771
West by : Property No. 2769
North by : Property No. 2777
South by : Road
Building and other particulars
1. Year of construction : 1980 to 1981
2. Plinth area : 36 squares
3. Roof : RCC
4. Flooring : Red oxide and partly
marble
5. Amenities : Sanitation
The market value of the schedule property is Rs. 24,00,000/- (Rupees twenty-four lakhs)”.
It is to be noticed that this Court directed the first respondent not to encumber the property vide order dated 26-8-1997. Further the first respondent himself stated before the lower Court that he is not going to alienate the property. The details of the consideration received by the first respondent from the impleaded respondents shown are as follows:
“(a) Rs. 10,000/- (Rupees ten thousand only) was paid to the vendor by way of cash at the time of execution of the sale agreement dated 14-5-1997.
(b) Rs. 5,00,0007- (Rupees five lakhs only) paid by way of two pay orders bearing Nos. 443488 and 061964 both dated 14-6-1997 and drawn on the Nedungadi Bank Limited and Karnataka Bank Limited, Bangalore in favour of the vendor.
(c) Rs. 2,00,0007- (Rupees two lakhs only) paid by way of pay order bearing No. 062704, dated 9-10-1997 drawn on the Nedungadi Bank Limited, Bangalore in favour of the vendor.
(d) Rs. 2,90,0007- (Rupees two lakhs and ninety thousand only) paid by way of cash on 15-10-1997 to the vendor.
(e) Rs. 2,00,000/- (Rupees two lakhs only) paid by way of pay order bearing No. 613959, dated 24-10-1997 drawn on the Karnataka Bank Limited, Bangalore in favour of the vendor.
(f) RS. 2,00,000/- (Rupees two lakhs only) paid by way of pay order bearing No. 06282, dated 27-10-1997 drawn on the Nedungadi Bank Limited, iBaiigalore in favour of the vendor.
(g) Rs. 1,50.000/- (Rupees one lakh and fifty thousand only) paid by way of pay order bearing No. 062104, dated 22-11-1997 drawn on the Nedungadi Bank Limited, Bangalore in favour of the vendor.
(h) Rs. 2,00,000/- (Rupees two lakhs only) paid by way of pay order bearing No. 062105, dated 22-11-1997 drawn on the Nedungadi Bank Limited, Bangalore in favour of the vendor.
(i) Rs. 3,50,0007- (Rupees three lakhs and (sic) thousand only) paid by way of pay order bearing No. 14209, dated 22-11-1997 drawn on the Karnataka Bank Limited, Bangalore in favour of the vendor.
(j) Rs. 3,00,000/- (Rupees three lakhs only) paid by way of Account Payee cheque bearing No. 124553, dated 22-11-1997 drawn on the Nedungadi Bank Limited, Bangalore in favour of the vendor”.
Thus totally he received Rs. 24,00,000/-. Except the first and second instalment, payment of Rs. 10.000/- and Rs. 5,00,000/- on 14-5-1997 and 14-6-1997, all other amounts were received after this Court passed an order not to encumber the property and allowed the appeal setting aside the order of the Trial Court rejecting the attachment and passed an order that there shall be an order of attachment as prayed for by the complainant. Thus it is clear that respondent had intentionally received major part of consideration amount from the impleading respondents and executed the registered sale deed playing fraud on this Court as well on the complainant and alienated the property deliberately violating the orders of this Court and committed contempt of this Court.
16. It is relevant here to refer the judgment of the Supreme Court in S.P. Chengalvaraya Naidu (dead) by L.Rs v Jagannath (dead) by L.Rs and Others1. The facts of the case are that the predecessor-in-mterest of the first respondent-plaintiff filed application for final decree for partition and separate possession of the plaint properties and for mesne profits. The appellants-defendants contested the application on the ground that the preliminary decree, which was sought to be made final, was obtained by fraud and, as such, the application was liable to be dismissed. The Trial Judge accepted the contention and dismissed the application for grant of final decree. The first respondent-plaintiff went in appeal before the High Court. A Division Bench of the High Court went through plethora of case-law and finally allowed the appeal and set aside the order of the Trial Court. Assailing that order an appeal is filed before the Supreme Court. The Supreme Court held as follows:
“From this decision it follows that except proceedings for probate and other proceedings where a duty is cast upon a party litigant to disclose all the facts, in alt other cases, there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence. It would cut at the root of the fundamental principle of law of finality of litigation enunciated in the maxim ‘interest reipublicae ut sit finis litium’ if it should be held that a judgment, obtained by a plaintiff in a false case, false to his knowledge, could be set aside on the ground of fraud, in a subsequent litigation.
The principle of this decision governs the instant case. At the worst the plaintiff is guilty of fraud in having falsely alleged, at the time when he filed the suit for partition, he had subsisting, interest in the property though he had already executed Exhibit B-15. Even so, that would not amount to extrinsic fraud because that is a matter which could well have been traversed and established to be false by the appellant by adducing the necessary evidence. The preliminary decree in the partition suit necessarily involves an adjudication though impliedly that the plaintiff has a subsisting interest in the property”.
Reversing the judgment of the High Court, the Supreme Court observed as follows:
“We do not agree with the High Court that ‘there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence’. The principle of ‘finality of litigation’ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the Court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the Court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the Court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the Court, is bound to produce all documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party”.
17. The Apex Court held that withholding vital document to gain advantage on other side would be guilty of playing fraud on the Court and opposite party.
18. Kerr on the Law of Fraud and Mistake, Seventh Edition by Denis Lane Mc. Donnell has dealt with ‘Legal Fraud’ which is as follows:
“Legal Fraud.–Fraud vitiates everything, even judgments and orders of the Court. It would be idle, therefore, to attempt to enumerate all the cases in which it is a ground of relief. It should, however, be noted that fraud as a ground for relief is not necessarily moral fraud, and often falls far short of the moral obliquity which constitutes fraud in a popular sense. The expression ‘legal fraud’ has often been taken exception to, and it has been said to be meaningless and indistinguishable from moral fraud or fraud in fact. Nevertheless, the expression had an intelligible meaning, and was convenient in practice in the 19th century; but led to confusion of thought and sometimes of practice, and must now be considered obsolete. Numberless decisions go to prove what is indeed sufficiently obvious, that there is ‘legal’ or, as it is perhaps better termed, ‘civil’ fraud, which is a ground for relief even where there is no moral blame or actual fraud. This is especially noticeable in many cases of rescission of contract, fraud upon powers and constructive fraud. The expression ‘legal fraud’ has been generally taken exception to in actions of deceit, the reason no doubt being that as in such actions a fraudulent intention is essential, the difference between a fraudulent intention to deceive and the motive of the deception was lost sight of; but even here the distinction between legal and moral fraud seems to exist, for a false statement, though made with a good motive, may be a legal fraud, whereas it could hardly be regarded as a moral fraud.
‘Legal fraud’, therefore, in the old cases, may be said to have meant fraud which is a ground for relief in law, and which though it may not amount to actual fraud, has similar consequences”.
And further held that:
Original vice continues to taint a transaction founded on fraud:
If a transaction has been originally founded on fraud, the original vice will continue to taint it, however long the negotiation may continue, or into whatever ramifications it may extend. Not only is the person who has committed the fraud precluded from deriving any benefit under it, but an innocent person is so likewise, unless there has been some consideration moving from himself.
In equity no length of time ran to protect or screen fraud. The Limitation Act, 1939, provides by Section 19(1) that no period of limitation prescribed by the Act shall apply to an action by a cestui que trust in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy. Section 26 postpones the commencement of the period of limitation prescribed by the Act: (i) where the action is based upon the fraud of the defendant or his agents or of any person through whom he claims or his agent, or (ii) where the right of action is concealed by the fraud of any such person, until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it”.
19. Corpus Juris Secundum, Volume 17 dealing with ‘Abuse of Legal Process or Proceeding’ stated as follows:
“Wilful abuse of legal process, such as instituting, or procuring the institution of, unauthorised or fictitious proceedings or suits, the wilful relitigation of matters previously adjudicated, the filing of baseless complaints, successive applications for orders in violation of statute, or obtaining Court orders by fraud or deceit, provided the other party is prejudiced thereby, is contempt, where such acts obstruct or tend to impede the due administration of justice Also, the filing of scandalous, defamatory, irrelevant pleadings constitutes an abuse of process and a contempt.
Obtaining the opinion of the Court where no real controversy exists, or procuring the continuance of the cause on the ground of feigned sickness, is also contempt, although numerous postponements with the approval of the Court are not ground for a contempt action. Moreover,” the filing of a spurious Will with knowledge of its falsity, and an application for its probate seeking to make the Will a part of the Court record is a direct contempt, and the making of a false affidavit in a cause which obstructs and impedes the administration of justice is punishable as contempt”.
20. In Halsbury’s Laws of England, Fourth Edition, Volume 9, the abuse of process of the Court is punishable for contempt or not has been dealt, which is as follows:
“Abuse of process in general.–The Court has power to punish as contempt any misuse of the Court’s process. Thus the forging or altering of Court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the Court or the Court’s officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt.
Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases the Court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the Court, by exercising its statutory powers, its powers under rules of Court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of Court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt”.
21. The above judgment of Apex Court and extracts from textbooks support our view that the first respondent played fraud on this Court and also on complainant and committed contempt of Court.
22. There is no dispute that this Court has got ample power to punish for contempt and remedy the damage caused by the contempt act while exercising power under Article 215 of the Constitution. The Supreme Court in case of S.K. Sarkar, Member, Board of Revenue, Uttar Pradesh, Lucknow v Vinay Chandra Misra, has considered the powers of the High Court and Supreme Court under Articles 129 and 215 and laid down as follows:
“14. Articles 129 and 215 preserve all the powers of the Supreme Court and the High Court, respectively, as a Court of Record which include the power to punish the contempt of itself. As pointed out by this Court- in Mohd. Ikram Hussain v State of Uttar Pradesh, there are no curbs on the power of the High Court to punish for contempt of itself except those contained in the Contempt of Courts Act. Articles 129 and 215 do not define and limit the powers of the Courts in punishing contempt of Court and to regulate their procedure in relation thereto. Indeed, this is what is stated in the Preamble of the Act of 1971”.
Therefore, the facts of this case clearly show that the first respondent 1 intentionally and deliberately violated the order of this Court by fraud and deceit, and as well as the Articles of the Constitution and committed the contempt of Court. The principle laid down in the Supreme Court judgment and the above textbooks amply support our view.
23. The learned Counsel for respondent 1 contended that though the appeal is for restoring attachment, the attachment is not given effect to by following the procedure laid down under Order 21, Rule 54. Therefore, it cannot be said that there is an attachment in the eye of law and further contended that respondent 1 and other impleaded respondents have no knowledge of the order passed by this Court dated 26-8-1997 directing respondent 1 not to encumber the property. Order 38 of the CPC deals with attachment before judgment. Order 38, Rule 5 provides for calling of the defendant to furnish security for the property. If the defendant fails to provide security or furnish surety, the Court may pass an order of attachment imposing condition where the defendant fails to show any cause or fail to furnish security, the Court may pass an attachment order. Order 38, Rule 6 provides for attachment of property where cause not shown or security not furnished and for withdrawal of attachment after furnishing security or surety or to make a suitable order. Order 38, Rule 7 provides mode of making attachment of property. Order 38, Rule 8 provides that attachment shall be made in the manner provided for the execution of the decree.
24. Order 38, Rule 9 provides that where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.
25. Order 38, Rule 10 provides that if any attachment is made before judgment the same shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.
26. Order 21, Rule 54 provides that attachment shall be made by making a proclamation at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the District. It is relevant to refer to Order 21, Rule 54(2) which reads as follows:
“(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the Office of the Collector of the District in which the land is situate and, where the property is land situate in a village, also in the Office of the Gram Panchayat, if any, having jurisdiction over that village”.
27. Order 38, Rules 5, 6, 7 read with Order 21, Rule 54, sub-clause (2) read together provide that where a property is attached before attachment, the Court has to find whether the defendant is ready to furnish security or surety. In case he fails to provide the same an attachment order can be passed and such attachment order has to be executed as per the procedure laid down in Order 21, Rule 54, sub-clause (2).
28. The contention of the learned Counsel for respondent 1 is that by reading sub-clause (2) of Order 21, Rule 54, it cannot be said that there is an attachment of the property. The learned Counsel relied on the decision in the case of Sinnappan v Arunachalatn Pillai and Others1. The Full Bench of the Madras High Court considering whether the prohibition of alienation of attachment caused support only from the date as contemplated under Order 21, Rule 54 held as follows:
“. . . . The answer will therefore, be that an attachment operates as a valid prohibition against alienation of the attached property only from the date on which the necessary proclamation is made-copy of the order affixed as contemplate in Order 21, Rule 54”.
29. In the case of A.T.K.P.L.M, Muthiah Chetti v Palaniappa Chetti and Others, the Privy Council held that:
“No property can be declared to be attached unless firstly order for attachment has been issued; and secondly, in execution of that order the other things prescribed by the rules in the Code have been done”.
30. In the case of U.C. Ramaiah Gowda v Venkatagiri Bhatta and Others, the High Court has laid down the same principle.
31. In view of the above stated principle, it is manifest that where an attachment order is passed and the procedure laid down in Order 38, Rule 7 read with Order 21, Rule 54, sub-clause (2) is not followed, it cannot be said that attachment is effective. There is no dispute about the proposition. The Civil Procedure Code has laid down the manner of attachment to be made after the attachment order is passed so that all the residents of the place where the property is situated will come to know about it and no body will deal with the said property. But, in the present case the first respondent himself filed a memo petition before the High Court praying to allow the appeal and to pass an order of attachment of property. On the said memo, the appeal was allowed and order of attachment was passed. Therefore, he has got the knowledge of attachment order, Merely because the procedure under Order 38, Rule 7 is not followed for attachment of property, it cannot be said that first respondent had no knowledge. First respondent himself moved the Court to pass an attachment order by filing a memo, so it cannot be said that he has right to violate the attachment order. Once he has got the knowledge of attachment order, alienating the property in violation of the order amounts to committing of contempt of Court irrespective of the fact that the procedure laid down under Order 38, Rule 7 is or is not followed. Therefore, the act of alienation of property having knowledge of the attachment order is gross violation of the order of this Court.
32. It is the duty of the Courts to perform duties and functions effectively and remain to its spirit with which they are entrusted with. When a party approaches a Court to safeguard his rights and Court passes an order in his favour and the other side violates the said order intentionally and deliberately, it is the duty of the Court to safeguard the rights of the parties before the Court. It is relevant to refer the observations of Justice P.B. Sawant, in case of Vinay Chandra Mishra, which reads as follows:
“If the judiciary is to perform its duties and functions, effectively and remain to its spirit with which they are sacredly entrusted to it, the dignity and authority of Courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give away and with it will disappear the rule of law and the civilised life in the society”.
Therefore, there is a duty on the Court to safeguard the rights of complainant.
33. Therefore, we declare that the sale of the suit property dated 24-11-1997 is null and void. We direct the impleaded respondents not to alienate or encumber the property pending disposal of the suit in the Court below.
34. Above stated facts and circumstances of the case vividly establish that first respondent has committed the contempt of Court. Therefore, he is convicted for an offence of contempt of Court under Section 12 of the Contempt of Courts Act and he is sentenced to be detained in civil prison for a period of four months.
35. The contempt petition is accordingly allowed.